ZERMAN GOMEZ Vs. MAHIMA CHANDRA KAIBARTA

JUDGEMENT

(1.) The plaintiff, who is the appellant before me, instituted the suit for a declaration that he has 11 as 11 gds. odd share in a jalkar called the, Sutberia done, for possession and damages; in the alternative for rent. The case made by him in the plaint is that he and his co- sharers, the pro forma defendants, have a jalkar mehal recorded as touzi No. 1427 of the Bakarganj Collectorate. The jalkar is called Bishandi and comprises the rivers and dones that fall within the boundaries stated in the plaint and that Satberia done is a part of the said jalkar. He claims an exclusive right to fish therein with his co-sharers by triangular nets. In the evidence it was stated that Satberia done is a part of the river system in which ha and his co- sharers have a right of fishery, being a done that connects the Golapdi River, the Golapdi done and the Lohalia river which are shown to be big rivers in the settlement map. He does not claim the soil of the said done and his first witness admits that the done in suit was a shallow one with no current till the District Board excavated a khal 7 or 8 years before suit, called the Gajalia Bharani Khal, and the plaintiff had never attempted to fish there before the District Board made the khal. The defendants, who admit fishing in the done in suit, claim the right to fish there on the basis of settlements taken from the riparian proprietors (not made parties) through whose estates the done flows. They do not deny that the plaintiff and the pro forma defendants have a several fishery named Bishandi, but maintain that the done is mot a part of the same and is moreover not navigable.

(2.) The plaintiff to support his claim relied principally upon Exs. 2, 3 and 4. Ex. 4 which is an order of the Khas Mahal Deputy Collector states that proprietors of touzi No. 1427 have the right to catch fish in all the rivers comprised in the said Mahal and directs a clause to be inserted in the kabuliat of the ijaradar of the Government Khas Mehal Jalkar forbidding him to fish in those rivers. No particulars of the rivers included in touzi No. 1427 are mentioned in this order. Exs. 2 and 3 are copies of the D Registers in respect of touzi No. 1427. In Ex. 3 fourteen rivers and clones are mentioned. Satberia is not there, but the Lohalia river and possibly Golapdi river are mentioned therein (The word in Ex. 3 seems to be Golapi done, but I take it that the word is a contraction for Golapdi). In the body of Ex. 2 which vis a part of Ex. 3 there is a statement that the owners of touzi No. 1427 (Bishandi Jalkar Mehal) have a right to fish by triangular nets in 14 dones which flow through parts of certain thanas mentioned there. In the foot-note however an order of the Collector is mentioned by which the word "fourteen" was expunged.

(3.) The plaintiff in the Courts below urged only one point, namely that Sutberia done is a part of the river system of his fishery, apparently on the ground that the current of his river Golapdi passes through it and falls into river Lohalia; but before me one other point is urged, namely that he has a several fishery in all streams which fall within the places mentioned in Ex. 2, which as the first Court points out would include the whole of Patna khali Subdivision and parts of Ferozpur and Sudder Subdivisions of the District. Both Courts have found that the done is not navigable, a few years back was part of a "blind stream," and that it was only when the District Board excavated a Khal called the Gajalia Bharani about seven or eight years before suit, that regular current began to flow through it. On these findings the plaintiff's suit has been dismissed, both Courts holding that the done cannot be regarded as included in the river system in which the plaintiff has his fishery rights. The first Court remarked that the plaintiff had his fishery in the fourteen rivers mentioned in Ex. 3 (which does mention the Sutberia done), but the lower appellate Court did not place much reliance upon this fact. I have pointed out that the words "fourteen rivers" which were originally in Ex. 2 were later on struck out by the Collector's order and I would assume that the plaintiff's jalkar rights are not limited to fourteen rivers but to all rivers within the places specified in Ex. 2, in which he could in law have a several fishery. In my judgment the fact that the done is not navigable and that it has become connected with the flowing rivers not by natural causes but by the act of the District, Board puts an end to the plaintiff's claim. I would first consider the plaintiff's first contention for the first time advanced here, namely, that the plaintiff has a several fishery in all the rivers falling within the boundaries of his grant as evidenced by Ex. 2. I do not see how he can have any such right in rivers and streams or dones which are not navigable. It is well settled that in India the right of fishing in nonnavigable rivers is not in the Crown, but is in riparian proprietors. When such a river passes entirely through the estate of one he has the right of fishing and when it passes in between two estates the proprietors thereof have the right to the soil according to the principle of usque ad medium filum aquae and the equal right of fishing in the portions of the river adjacent to their lands: Raja Neelanund V/s. Raja Tek Narain (1862) Oal SDA Rep 160, Sreemantu Bagdi V/s. Nirantar Jelia (1913) 19 IC 893 and Khagendra Narain V/s. Matangini Debi (1890) 17 Cal 814. The Government has the right to the fisheries in large navigable rivers only and as the claim to a several fishery by a private person can only be founded upon a grant from the Crown, either proved or presumed, it would follow that where a several fishery is claimed by a private individual in the natural streams in a perganah or preganaho the right claimed can be over navigable rivers only, or those portions of a river which are navigable, on the principle that a grantee cannot have a right in what the grantor had not. In any event such a grant can confer on the person to fish only in nabural watercourses and not in those made by the hand of man.